Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw

No, not without giving the patron notice and an opportunity to appeal, at least according to a federal district court in North Carolina this month.

Ralph Miller sued the library, the library director, and the librarian who barred him from the Internet. He claims that she came up behind him when he was reading the Russian newspaper "Pravda.ru" online. "Unwelcome and unsolicited" nude image(s) had popped up on his computer. Miller says that the librarian ordered him off the computer at the Mt. Airy (N.C.) library and banned his access at all thirteen libraries in the system.

The court just ruled in favor of Miller. That is, he's made a valid due process claim. He has a First Amendment right of access to information (Kreimer, Neinast, Armstrong cases). At a minimum, the library must give users notice and an opportunity to appeal.

The court said that the Supreme Court's decision upholding the Children's Internet Protection Act (CIPA) makes it clear that libraries can adopt Internet use agreements prohibiting users from accessing visual depictions of child pornography and obscenity. That does not mean, however, that libraries can dispense with due process.

Minow take: I'm surprised (again) if the library doesn't have some appeals process, essential for legally enforceable behavior policies. Maybe the patron is telling the truth - what if he was just trying to read Pravda? What was the nature of the photos? (Remember the Hawaii patron who sued the library when he was allegedly banned looking at pictures of men with their shirts off?) Miller deserves a chance to tell his side of the story before summarily having his access taken away. Is there more to the library's side of the story? Maybe he should have been banned, after getting due process. We need the facts, which we'll get if it goes to trial. More likely it'll settle. If you're in North Carolina and follow this case, please send updates back to LibraryLaw blog.

This blog shows the newest comment at the top and the older comments below it. A reader wrote in that he likes regular chronological order better - with the first (oldest) comment on top and newer ones below. If you have a preference, let me know and I'll consider switching it. Or will this be like the Ann Landers poll on toilet paper - should it roll off the top or the bottom? She had a stronger response to that (a passionate split vote) than to her more substantive issues. I think she regretted having ever asked the question. Anyway, add your comments below.

Some of you have asked about copyright issues in the Google Print - the massive library project...that is why aren't the players frozen by fear of lawsuits? Barbara Quint relays some reassurance from publishers:

Although some library participants apparently were worried that publishers might object to the program on the grounds of copyright violation, Patricia Schroeder, executive director of the Association of American Publishers (AAP), assured me that they have no immediate plans to try to deter the program, such as through legal action. The program expands on the existing Google Print program built on similar digitization done in direct arrangements with publishers.

Minow take: This is very good news. It doesn't cover every publisher/author, of course, but it could help reshape our norms. This in turn affects fair use analysis by courts. Further, it could help efforts to update copyright law and regain some of the balance that users have badly lost over the last several years. Section 108 needs to be revised, and this project helps us visualize the promotion of progress, giving some user access while retaining incentives for authors. I think it sounds like a fabulous, forward thinking project. I hope some privacy concerns are being discussed.

Read on for more from Barbara Quint's conversation with Pat Schroeder:

Well, here's what James Comey said about librarians in an address before the American Law Institute last May:

I think librarians do tremendous good in this world, and I'm not saying that just because the First Lady is a librarian, but I do believe that it is a shame that the debate with people who care so much about public policy, as I believe librarians do, has been so ill-informed.

Mary: I believe, by and large, that librarians are better informed than most folks, and take issue with a number of his points. Here are some short excerpts by Comey, followed by my thoughts.

The State Library of Iowa offered a legal update for libraries in June 2003 (I just stumbled upon it), based on the Lawyers for Libraries training offered by the American Library Association. It covers privacy, warrants, liability, public forum and free speech issues. It's in outline form, and gives relevant case citations.

Janice P. Bruno, Clerk III at the Jefferson Parish Library handled bookings of library meeting rooms. She was reprimanded for failing to notify the maintenance department that two events at the East Bank Regional Library had been cancelled. On each occasion a maintenance employee had spent time setting up the meeting room for the scheduled event; on one of the occasions the maintenance employee had worked overtime to do the room setup. Later, she was notified that she was being given a 5.5 day suspension without pay. The basis for the suspension was violation of conduct regulations, violation of sick leave policy, and continued defiance of library procedures. She sued the library and recently lost at the Louisiana appellate court.

Minow take: Library employment cases, like any employment cases, get very fact specific. You really need to read the whole case to see what's up, including possible yelling at her supervisor, fist banging etc. There's more to this case, and the reason I don't like employment law is the she-said-she-said-he-said character of it all.

I remember that when I was a librarian, I really disliked the job of booking meeting rooms. If you made a mistake, you could really mess up people's plans. One time my library booked Eckankar and all the neighborhood ministers and pastors called to complain. They threatened to picket and call the news media-that's why I remember it. They were upset because we wouldn't let them book a room, yet we were letting this "new age" group in to show a film despite the library's "no religious use" policy. Not until I went to law school did I learn that our policy was wildly at odds with First Amendment jurisprudence. In fact that experience helped energize me to focus on learning library law. Read the Library's Legal Answer Book for the whole story.

It is my feeling that those librarians who contract with Google for access to their books and documents for purposes of digitization should require that any future searches done on Google that produce this material, must respect the anonymity of the searcher. This would mean that Google cannot record the IP address or unique ID from the cookie for such searches. Short of this, another alternative would be for libraries to deny Google access to any literature that has political content or relevance. [Emphasis is mine - Mary]

Calling the lawsuit vile and malicious, Judge Allen Sharp threw out a case Dec. 6 that had been filed by a child molester against a library facilities manager and the library's security company.

The molester claimed that the library should have prevented him from harming the child. He said the security company and its supervisor should have called the police when they saw him trying to open doors on the third floor of the library.Because they did not stop himwhile he was casing the library, "an innocent boy was victimized as well as the State of Indiana, St. Joseph County, and myself Ladell Alexander," he claimed.

The court wrote:

...Ladell Alexander, by his own admission, molested an innocent boy. Though every decent and moral person wishes that he had been prevented from committing this hideous crime, no one owes Mr. Alexander anything for having not done so.

Minow comment: I think Judge Sharp expressed it well - every decent person wants to prevent this. Should the security company have noticed the suspicious behavior? Was the perpetrator acting any more suspiciously than the countless other odd library patrons we see? In any event, it would be crazy to hold the library liable to the perpetrator. (I can't find a way to write that last sentence without understating it.)

Public libraries are not safe places. Yes of course we should make them safe. We should make the parks and streets safe too. When you're open to the public, anyone can walk in. Should you close if you don't have enough staff to view all corners of the library? Virtually all libraries would need to close. Security guards are great (tho definitely .. not always) when a library can afford them, but even then there's no guarantee of safety, as in the Alexander case.

Again I ask, what is the library's responsibility in letting the public know that these horrible incidents occur in their beloved public libraries? What will stop parents from sending latchkey kids to the library for hours and hours?

Added later: I googled Ralph Takach (named in the lawsuit). According to Michael Stephens, Tame the Web (May 10th), Takach is a Crisis Prevention Institute Certified Trainer and recently gave a successful program on Preventing Violence in the Library - recognizing early warning signs of anger, keeping behavior from escalating. To me that looks like a library that takes security issues very seriously.